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The Responsibilities of a Lawyer Representing a Public Official

Wednesday, May 14th, 2008

Robert Wechsler

A quote from a lawyer in an article
in today's New York Times
brought me back to what I recently promised to discuss at the end of a blog entry about
Elizabeth Wolgast's book, Ethics of an Artificial Person: Lost
Responsibility in Professions and Organizations.

Daniel K. Webb, the head of Detroit Mayor Kwame Kilpatrick's legal
team, said of the City Council's request that the mayor resign: "I have
told the mayor, as his lawyer, that he should not consider that under
any circumstances."

The Code of Professional Responsibility states that the duty of a
lawyer to his client and his duty to the legal system are the same: to
represent his client zealously within the bounds of the law. But
lawyers often go beyond zealous representation on legal issues. They
often provide non-legal advice, just as Mr. Webb did to the
mayor. What could the law possibly have to say about a public
official's decision to resign in the face of a scandal harmful to Detroit?

In addition, isn't zealous representation something that is required
publicly, not
privately? Yes, Mr. Webb certainly should not say publicly that he
suggested that the mayor resign. But that doesn't mean it is his duty
to tell the mayor not to resign, just because that is the mayor's
position. Resignation is not a legal issue, it is a balancing of
the
mayor's personal interests against the public interest. It is an
ethical issue.

As Ms. Wolgast explains, lawyers are in a unique position to facilitate
or frustrate a client's action when it is ethically questionable. But
most lawyers do not feel that they have any responsibility to question
a client's decision in an ethical sense, even though they often
question a client's decision in a business sense. In fact, many believe it is inappropriate to question a client's ethics, and it is certainly not a good way to keep a client.

Many lawyers, like Mr. Webb here, do not feel it at all inappropriate
to publicly state that they have given a client ethical advice that
supports his client's decision. If such ethical advice is
appropriate, why is it inappropriate to give ethical advice that is
contrary to what the client says he wants to do?

As David Luban is quoted as saying in Wolgast's book, “Law ... is an
inseparable part of the context in which we learn about morality and
help to shape our acceptance of moral standards. That means the
profession cannot be morally neutral, it must be engaged somehow."

This is especially true when the lawyer represents a public official,
because a public official has obligations that go far beyond those of
an ordinary client. And a mayor's obligations go far beyond those
of an ordinary public official. A lawyer representing a public
official should take into consideration his client's additional
obligations. Of course, he is required to argue for his client's
innocence if his client insists he is innocent. But the effect of
what has occurred in Detroit goes far beyond the mayor's guilt or
innocence.

What has occurred there has been extremely harmful to the city's
government and its reputation. To tell the mayor that under no
circumstances should he consider resigning is to completely ignore his
client's and his own obligations to the public. This is not a morally
neutral position, it is an unethical position: a refusal to even
consider balancing personal and public obligations.

City Councilwoman Sheila
Cockrel said, “This is about Detroit, a city where the rule of law governs
everyone, including elected officials. As tragic as it is, this
enormously talented, gifted, charismatic politician — who will not
accept responsibility — needs to go.” Both the mayor and the head of
his legal team, as well as the rest of us, especially lawyers, need to
consider what it means to accept responsibility and, more important,
what it means to refuse to accept responsibility.